Indiana lawsuits could have broad implications for same-sex couples

Indiana's attorney general said he will not be the one to pick a fight over the rights of a Chicago woman whose same-sex partner was killed in the collapse of a stage at the Indiana State Fairgrounds. But legal experts say lawsuits filed in the case are certain to have widespread implications for same-sex couples across the U.S.

Chicagoan Alisha Brennon entered into a civil union in Illinois with her partner, Christina Santiago, in June, shortly after civil unions became legal in Illinois on June 1. In August, Santiago was one of seven people killed when a storm blew down an outdoor concert stage in Indianapolis.

Last week, Brennon filed three lawsuits seeking damages for the death of her partner. The suits could force the courts to decide whether civil unions in one state have legal standing in another.

Indiana does not allow civil unions, and it does not recognize same-sex unions from other states. But Indiana Attorney General Greg Zoeller said he will not make civil unions an issue as he defends the state from a federal case filed by Brennon.

"(The state) will seek dismissal of the entire case, but not on the basis of a civil union," Zoeller said in an email to the Tribune.

"We generally believe it will be up to the Legislature to decide whether to rewrite the laws concerning liability and beneficiaries, and up to the courts to decide how to interpret those laws," Zoeller said.

Two other lawsuits seek damages from concert organizers and security. The third, a federal case, challenges Indiana's cap of $5 million that can be sought in the case by the 60-plus people who were hurt or killed.

As the lawsuits move through Indiana and federal courts, one of the defendants or a judge will ask whether the couple's civil union was still legal when they crossed the state line, experts said.

"It's an inevitable legal battle," said Andrew Koppelman, a professor of family law at Northwestern University Law School. "It has to happen. They're going to give her money as this woman's spouse, so someone has to say whether you get to give it to her or not."

A judge could raise the issue of whether Brennon's civil union with Santiago gives her a right to be compensated for the loss of her partner, Koppelman said. If the state won't raise the issue, one of the other defendants is almost certain to try to use the civil union issue to get the case dismissed, he said.

Donald Gjerdingen, a professor at Indiana University Law School in Bloomington, said that any of the three lawsuits Brennon has filed are certain to evolve from routine wrongful death cases into civil rights battles.

"There are just so many ways this issue could be raised," Gjerdingen said. "As a case, it is just a perfect example of the issues that come up because of the patchwork of laws that we have and the federal Defense of Marriage Act that took effect in the 1990s."

Under federal law, marriage is defined as being between one man and one woman. States can create civil unions or other marriage-like legal status for same-sex couples, but the federal law also says no state is required to recognize civil unions from another state, Gjerdingen said.

The situation mirrors the laws that governed interracial marriage in the pre-Civil Rights Era, or varying rules on marriage age or incest, Koppelman said. In the last century, differing laws raised legal questions among states about whether an interracial couple who married in Illinois were considered married in Mississippi, or if a man who married his cousin in one state had committed incest in another.

Courts eventually decided the governing law was whatever the law was in the state where the couple lived.

"When you crossed state lines, your marriage did not turn on and off like a light bulb," Koppelman said.

Because same-sex unions, and same-sex marriage bans, are relatively new, the case law is not as settled.

If the courts were to make a ruling that changes Indiana's marriage laws, that could spur other legal action, said Micah Clark, director of the American Family Association of Indiana, a group that led the drive for a defense of marriage amendment in Indiana. "If this were to be a challenge to our marriage laws or start redefining marriage laws, we would certainly get involved in the lawsuit," he said.

Indiana lawmakers last spring voted in favor of amending the state constitution to ban gay marriage and deny recognition of out-of-state same-sex unions. The amendment must pass a second session of the Legislature, then go to a popular vote, a process that could happen by 2014.

By then, Brennon's case still could be working its way through the courts, said her attorney, Kenneth Allen.

"We can set precedent that establishes legal rights for lesbian couples in this circumstance, and it can be applied to other contexts," Allen said. "For those that loved Christina to find any purpose in her death, we had to proceed in this fashion. Otherwise, her death makes no sense at all."

The implications of Brennon's lawsuits were not lost on Gary resident Tyona Wesley-Stitt, who in 2006 marked her commitment to her same-sex partner in a private ceremony that has no legal recognition in Indiana.

Wesley-Stitt and her partner have seven children between them, a house and other assets, and a mountain of difficult medical decisions ahead because her partner has multiple sclerosis.

"We are going to have to go to our lawyer now to have things set up, to make sure we can take care of each other," Wesley-Stitt said. "It upsets me that the law is the way it is, but you have to decide if you're going to stay angry or try to move things forward."